Mediation Message No. 46


With apologies to the Civil Code’s Maxims of Jurisprudence (sections 3509 to 3548), which can provide an entertaining read, I would like to propose maxims that are particularly appropriate for mediation:

Settling is better than going to trial (mediation maxim no. 1) – What has always been a generally accepted truism, has been confirmed by a study in the September 2008 issue of the Journal of Empirical Legal Studies that 61 percent of plaintiffs in civil cases received an average of $43,000 less at trial than they would have obtained at settlement and 24 percent of defendants should not have gone to trial because it cost them an average of $1.1 million. The findings are based on 2,054 cases from 2002 to 2005.

Mediation can not be rushed (mediation maxim no. 2) – Like the axiom that no wine should be drunk before its time, each mediation has to proceed at its own pace to be effective. Settlement discussions take time, whether because of the need to engage in extensive fact gathering, that parties must be conditioned to accept the realities of relevant factual issues or that litigants, at mediation, are constantly reevaluating their respective goals. One party might be ready at the beginning, but it takes two (or sometimes more) to tango in this dynamic process, that involves ever-changing and occasionally unpredictable circumstances.

Preparation is the key to achieving mediation goals (mediation maxim no. 3) – Cases settle at desirable terms because the attorneys were prepared. They talked to their clients about the purpose of mediation, the facts and theory of their cases and how to respond, if permitted by the attorneys, to the mediator’s or opponent’s questions. They thought about the strengths and weaknesses of both their own and their opponent’s cases and were prepared to discuss those pluses and minuses with the mediator. Demonstrative evidence and illustrative aids, which emphasized important factual and legal aspects of the cases, were used. Persuasive briefs were given to the mediators well before the mediation. People with authority to settle the case were at the mediation, or immediately accessible. The attorneys thought about whether they and their clients should modify their settlement demands or offers and, if so, to what degree when faced with changed circumstances. And, finally, the attorneys considered what would have to be done to try their respective cases if they had not been resolved at mediation and, more importantly, had realistically evaluated the chances of achieving their goals at trial.

The facts generally predominate (mediation maxim no. 4) – The applicable law is important, especially if a motion for summary judgment is pending. The defendant must also be financially able to afford the proposed settlement. But first and foremost, the facts are most frequently the pivotal factor.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, September 2008

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